The Impact of Supreme Court Elections

Eugene Volokh highlights how the Pennsylvania Supreme Court has opened the door to redefine Pennsylvania’s self-defense standard from one which requires the state to disprove a claim of self-defense beyond a reasonable doubt, to one where the defendant has to prove self-defense by a preponderance of the evidence. This would essentially shift the burden from the state to the defendant. Prof. Volokh notes that the legislature can codify the standard and settle the issue, which we might need to start pushing. A burden shift like this is going to mean more ambiguous self-defense cases are going to end up going to trial, even if the state doesn’t have a remarkably strong case.

Looks like we’re not finished on this subject yet in Pennsylvania. Looking at the opinion here, it would seem to me that there might be the votes to change the standard, since three justices joined in the Chief’s opinion, while only two filed concurring opinions that took issue with the self-defense statements. Note that Orie Melvin did not participate in this case because she was on leave from the court, and eventually convicted of several felonies.

Pennsylvania conducts Supreme Court elections in off years. A lot of people, including gun owners, don’t vote in these elections. These are the wages of that belief. Or perhaps I should say the continuing wages of that belief, because we’re still living with de facto registration in Pennsylvania thanks to the ruling in ACSL v. Rendell. I’d note that opinion was handed down in 2004, and we’re still hearing nothing but promises from legislators in terms of fixing that, nearly a decade later. I would not hold out hope they’ll fix the self-defense issue if the Supreme Court acts there in any kind of timely manner. Supreme Court elections are very important.